Re-Cap on House Hearing on GPS Act

On Thursday, May 17, the House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 2168, the Geolocational Privacy and Surveillance Act (“GPS Act”).

At the hearing, Ed Black, the President & CEO of the Computer & Communications Industry Association expressed his support for the bill, noting that the requirement to obtain a warrant based on probable cause for location data would give assurances to all users that their information will be “protected at the highest level under the law.” He advanced 4 reasons for his conclusion: (1) geolocation privacy is a civil liberties imperative given that a person’s physical location and actions are “the very essence of personhood;” (2) because mobile telephony is one of the fastest growing economic sectors, there is an important business imperative in location privacy; (3) all types of individuals, from low-income and minority users, to professionals, depend on mobile technology; and (4) decreasing the trust people have in the devices they use will have a significant impact on how they interact with society and business in the future.

Catherine Crump, a staff attorney at the American Civil Liberties Union (“ACLU”), also supported the bill. Ms. Crump focused her testimony on the fact that police are currently able to use GPS technology to track individuals over extended periods of time without having to first demonstrate to a magistrate a good reason for such tracking. She supported this claim through evidence collected by the ACLU during an August 2011 survey of state and local law enforcement agencies that revealed that although cell phone tracking by authorities is routine, few agencies consistently obtain judicial warrants for such activities. She also emphasized how recent technological developments allow for GPS tracking with great precision, both real-time and historically, regardless of whether such tracking is conducted through cell phones or vehicles, or whether police obtain GPS or cell site data. She further noted that protections are needed both for real-time and historical collection of location information, given that protections solely for prospective data would in effect allow officials to use GPS devices to record a person’s movements so long as the authorities waited a number of minutes before accessing those records, thereby making them “historical.” She finally argued that the GPS Act could be strengthened even further through a requirement that law enforcement officials keep records of their requests.

On the other side of the debate, John Ramsey, the National Vice President of the Federal Law Enforcement Officers Association, argued that the GPS Act as it currently stands would impact law enforcement’s ability to combat crime. He emphasized that the information collected through GPS tracking does not contain “contents” of a conversation, and therefore should only require a court order, not a warrant. He also argued that the Act is too broad, as its definition of “geolocational information” could be interpreted to include pen registers, On-Star, and EZ-Passes. He further noted that cell-site information should more appropriately be analogized to corporate or financial records, to which a legally authorized subpoena or court order currently suffices.

Also opposing the bill, Joseph Cassily, the past President of the National District Attorneys Association (“NDAA”) and current State’s Attorney for Hartford County, Maryland, stressed the impact that the bill would have on law enforcement’s efforts given that the Act would require a warrant to gather many forms of information that can currently be obtained by subpoena. He also emphasized NDAA’s view that it is important to distinguish between historical data compiled from cell tower hits and prospectively sought information. He also raised issues with a number of the Act’s exceptions. For example, he noted that the exception that allows a parent to consent to tracking a child’s device would leave law enforcement unable to do its job where a child is thought to be in danger but the parent is not locatable to obtain consent. He further criticized that the Act does not explain from whom law enforcement can obtain tracking information when the emergency exception applies – only from the victim, or also from the perpetrator of the crime? He finally noted that despite the exceptions to the warrant requirement contained in the Act, there is no statutory mandate in the Act for a service provider to turn over records, and no time frame for compliance, which may lead to law enforcement being denied the information it needs by a service provider.

About The Author

Melissa Maalouf’s practice focuses on advising a broad range of clients, from start-ups to established companies, on both U.S. and international data privacy and security issues. Melissa assists clients in drafting appropriate website disclosures, implementing legally-compliant e-commerce flows, responding to FTC Section 5 and state AG enforcement actions, analyzing advertising claims, and children’s online privacy and safety issues. She also regularly helps clients obtain certification under the EU-US Safe Harbor and navigate compliance with divergent international privacy laws.